RULE 12. DEFENSES AND OBJECTIONS:- WHEN AND HOW;PRESENTED - BY
PLEADING OR MOTION - MOTION FOR JUDGMENT ON THE PLEADINGS;
CONSOLIDATION AND WAIVING DEFENSES; PRETRIAL HEARING

(a) When presented. A defendant who is served with a summons shall serve an answer
thereto within 20 days after service of the summons, unless the court directs otherwise when
service of process is made pursuant to Rule 4(m). A party who is served with a cross-claim
shall serve an answer thereto within 20 days after service of the cross-claim. The plaintiff
shall serve a reply to a counterclaim in the answer within 20 days after service of the answer
or, if a reply is ordered by court, within 20 days after service of the order, unless the order
otherwise directs.Time to serve a responsive pleading.

(1) In General. Unless another time is specified by this rule or a statute, the time for
serving a responsive pleading is:

(A) a defendant must serve an answer within 21 days after being served with the
summons and complaint;

(B) a party must serve an answer to a counterclaim or crossclaim within 21 days after
being served with the pleading that states the counterclaim or crossclaim;

(C) a party must serve a reply to an answer within 21 days after being served with an
order to reply, unless the order specifies a different time.

(2) Effect of a Motion. The service of a motion permitted under this rule alters those
periods of time as follows, unless a different time is fixed by order of the courtUnless the
court sets a different time, serving a motion under this rule alters these periods as follows:

(i)(A) if the court denies the motion or postpones its disposition until the trial on the
merits, the responsive pleading must be served within 1014 days after notice of the court's
action;

(ii)(B) if the court grants a motion for a more definite statement, the responsive
pleading must be served within 1014 days after the service of the more definite statement
is served.

(b) How presentedto Present Defenses. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, must
be asserted in the responsive pleading thereto if one is required, but. But a party may assert
the following defenses at the option of the pleader may be made by motion:

(i)(1) lack of subject-matter jurisdiction over the subject matter,;

(ii)(2) lack of personal jurisdiction over the person,;

(iii)(3) improper venue,;

(iv)(4)insufficiency ofinsufficient process,;

(v)(5)insufficiency ofinsufficient service of process,;

(vi)(6) failure to state a claim upon which relief can be granted,; and

(vii)(7) failure to join a party under Rule 19.

A motion making asserting any of these defenses must be made before pleading if a further
responsive pleading is permitted allowed. If a pleading sets out a claim for relief that does
not require a responsive pleading, an opposing party may assert at trial any defense to that
claim. No defense or objection is waived by being joinedjoining it with one or more other
defenses or objections in a responsive pleading or in a motion. If a pleading sets forth a claim
for relief to which the adverse party is not required to serve a responsive pleading, the
adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on
a motion asserting defense numbered (vi), to dismiss for failure of the pleading to state a
claim upon which relief can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion must be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties must be given reasonable opportunity to present all
material made pertinent to the motion by Rule 56.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed -- but within
such time asearly enough not to delay the trial,--anya party may move for judgment on the
pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion for judgment
on the pleadingsunder Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion shallmust be treated as one for summary
judgment and disposed of as provided inunder Rule 56,.and allAll parties shallmust be
given a reasonable opportunity to present all the material madethat is pertinent to such athe
motion by Rule 56.

(d) Preliminary hearings. The defenses specifically enumerated (i)-(vii) in subdivision
(b) of this rule, whether made in a pleading or by motion, and the motion for judgment
mentioned in subdivision (c) of this rule shall be heard and determined before trial on
application of any party, unless the court orders that the hearing and determination .pdf be
deferred until the trial.

(e) Motion for a More Definite Statement. IfA party may move for a more definite
statement of a pleading to which a responsive pleading is permittedallowed, but which is so
vague or ambiguous that athe party cannot reasonably be required to frame a responsive
pleading, the party may move for a more definite statement before interposing a responsive
pleadingprepare a response. The motion must be made before filing a responsive pleading
and must point out the defects complained of and the details desired. If the motion is granted
and the order of the court orders a more definite statement and the order is not obeyed within
ten14 days after notice of the order or within such otherthe time as the court may fixsets,
the court may strike the pleading to which the motion was directed or make suchor issue any
other order asthat it considers justappropriate.

(f) Motion to Strike. Upon motion made by a party before responding to a pleading
or, if no responsive pleading is permitted by these rules, upon motion made by a party within
twenty days after the service of the pleading upon the party or upon the court's own initiative
at any time, the court may order stricken from anyThe court may strike from a pleading anyan insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The
court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.

(g) Consolidation of Defenses in a Motion.

(1) Consolidating Defenses. A party who makes a motion under this rule may join be
joined with it any other motions herein provided for and then available to the partyallowed
by this rule.

(2) Limitation on Further Motions.IfExcept as provided in Rule 12(h)(2) or (3), a
party makes a motionmovant under this rule but omits therefrom anymust not make another
motion under this rule raising a defense or objection thenthat was available to the party
which this rule permits to be raised by motion, the party may not thereafter make a motion
based on the defense or objection so omitted, except a motion as provided in subdivision
(h)(2) hereof on any of the grounds there statedbut omitted from its earlier motion.

(h) Waiver or preservation ofWaiving and Preserving Certain Defenses.

(1) When Some Are Waived. A defense of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of process is waivedparty waives any
defense listed in Rule 12(b)(2)-(5) by:

(A) if omittedomitting it from a motion in the circumstances described in subdivision
(g),Rule 12(g)(2); or

(B) failing to either:

(i)if it is neither mademake it by motion under this rule; or

(ii)nor includedinclude it in a responsive pleading or in an amendment permittedallowed by Rule 15(a) to be made as a matter of course.

(2) When to Raise Others.A defense of failureFailure to state a claim upon which
relief can be granted, a defense of failure to join a party indispensable underperson required
by Rule 19(b), and an objection of failureor to state a legal defense to a claim may be made
raised:

(A) in any pleading permittedallowed or ordered under Rule 7(a), or;

(B) by a motion for judgment on the pleadings,under Rule 12(c); or

(C) at the trial on the merits.

(3) Lack of Subject-Matter Jurisdiction.Whenever it appears by suggestion of the
parties or otherwise that the courtIf the court determines at any time that it lacks subject-matter jurisdiction of the subject matter, the court shallmust dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7)
— whether made in a pleading or by motion — and a motion under Rule 12(c) must be
decided before trial unless the court orders a deferral until trial.

(i) Offer of Fixed Damages.

Service. In an action arising on contract, the defendant may serve upon the plaintiff
with the answer an offer in writing that if the defense fails the damages will be assessed at
a specific sum, and if the plaintiff signifies acceptance in writing and on the trial has a
verdict, the damages must be assessed accordingly.

(j) Effect if offer of fixed damages Rejected. If the plaintiff does not accept an offer
of fixed damages, the plaintiff must prove the plaintiff's damages as if it had not been made.
and is not permitted to introduce the offer in evidence. If the damages in the plaintiff's favor
do not exceed the sum stated in the offer, the defendant may recover costs incurred in
consequence of any necessary preparations or defense in respect to the question of damages.

This rule is derived from Fed.R.Civ.P. 12, with the addition of subdivisions (i) and
(j) providing for an offer of fixed damages.

Rule 12 was amended, effective _______________, in response to the December 1,
2007, revision of the Federal Rules of Civil Procedure. The language and organization of the
rule were changed to make the rule more easily understood and to make style and
terminology consistent throughout the rules.

Subdivision (a) has been changed slightly to conform to numbering differences
between these rules and the federal rules and to delete references to statutes, agencies, and
officers of the United States.

Subdivision (a) was amended, effective September 1, 2004, to replace an obsolete
reference to N.D.R.Civ.P. 4(d)(4) with a reference to N.D.R.Civ.P. 4(m).

Subdivision (a) was amended, effective March 1, 2007, to delete a reference to service
of a summons without a complaint. N.D.R.Civ.P. 4(c)(2) requires the complaint to be served
with the summons.

Paragraph (a)(1) was amended, effective _________________, to increase the time
to serve a responsive pleading from 20 to 21 days.

Paragraph (a)(2) was amended, effective ________________, to increase the time to
serve a responsive pleading from 10 to 14 days when a motion is served.

Subdivision (b) was amended, effective March 1, 2002, to incorporate a time
limitation for an objection to improper venue.

Former subdivision (d) was moved and renamed subdivision (i), effective
___________.

Subdivision (e) was amended, effective ___________________, to increase the time
to obey an order for a more definite statement from 10 to 14 days.

Paragraph (f)(2) was amended, effective __________________, to increase the time for a court to act on a motion to strike from 20 to 21 days.